Abandonment, resignation or dismissal: Determining the true cause of employment termination

Abandonment of employment describes a situation where an employee ceases to attend their place of employment without proper excuse or explanation. If the employee’s conduct is such as to convey to a reasonable person in the situation of the employer that the employee is unwilling or unable to substantially perform their obligations under the employment contract, the employer can accept that the employment relationship is ended by the employee’s renunciation of the employment obligations.

In a true abandonment situation, the cessation of employment does not give rise to rights of the employee to make claims under the Fair Work Act 2009 (Cth) about the termination of employment, such as unfair dismissal or a general protections claim. The employee cannot claim an entitlement to notice.

In the case of Tamrah Hughes v Kevin Vierboom Pty Ltd (2024), the Fair Work Commission (FWC) was required to determine whether an employee had abandoned her employment.

The employee, who was a paralegal at a law firm, notified her employer that she was pregnant and when she would begin her parental leave. The month before her parental leave began, the employee was advised that the business was downsizing and her job was at risk of redundancy. Following a consultation meeting, the employee was given a deed of release to sign that stated her employment was ending due to resignation. The employee then stopped attending the workplace and engaged a lawyer.

In concluding that the employee did not resign or abandon her employment, but was dismissed at the employer’s initiative, the FWC considered the following:

In notifying an intention commence parental leave, the employee made no representation that she was resigning. This was not a clear or unequivocal resignation.
The meeting concerning the employee’s potential redundancy was not a genuine consultation, as required under the employee’s relevant modern award. The redundancy was presented as an accepted fact. The employer was taking an initiative to bring about the end of the employment relationship.
Following the meeting where the employee allegedly agreed to resign, she never signed the agreement to confirm her resignation.
The employee leaving the office and not returning to work was at the employer’s instructions.
The payment of 1 week's pay in lieu of notice undermined the employer’s argument that there was an abandonment of employment situation.

In finding that the employee was dismissed, the FWC found it had jurisdiction to conduct a conference between the parties in the matter.

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